Opinions
‘Because of sex’ approach to protecting trans people
Many analyses of Bostock decision missed the real history
“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado
The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.
It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.
Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).
So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.
How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.
The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.
Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.
The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.
It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”
It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.
So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.
Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”
This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.
Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.
People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.
Dana Beyer is a longtime D.C.-based advocate for transgender equality.
Opinions
Why this Black Pride, I ranked Janeese Lewis George #1 for D.C. mayor
Compliance is not a strategy for defending D.C.
Washington, D.C. is at a crossroads. In uncertain moments, voters are encouraged to lower expectations, choose familiarity over vision, and look for leaders who seem most willing to accommodate hostile federal power. That approach misunderstands this moment and what leadership requires.
I ranked Janeese Lewis George #1 for mayor.
As a Black gay man whose career has moved through law, policy, media, and movement work and has called D.C. home for 15 years, I have seen the difference between performative allyship and meaningful action. Too often, politicians treat LGBTQ communities as symbolic talking points. They show up for Pride, issue polished statements, and expect support without taking risks that improve our lives. Our vote should be earned through policy, consistency, relationships, and accountability.
That is one of the many reasons I trust Janeese.
A recent Blade column tried to define Janeese through guilt-by-association politics, treating a passing association with someone else’s comments as proof of her values. I wholly reject that framing.
Coalition-building in a city as politically diverse and socially complex as D.C. will never be perfect. Anyone who has organized, legislated, or advocated understands that progress requires engaging people whose views or approaches may not align at every moment. The fair standard is a candidate’s values, priorities, judgment, and record.
Janeese’s record clears that standard. GLAA gave her a 10 out of 10, its highest possible rating. Capital Stonewall Democrats, the largest LGBTQ political organization in D.C., endorsed her by an overwhelming margin. Her platform shows a candidate who understands that LGBTQ safety depends on the ability to stay housed, access healthcare, protect bodily autonomy, and defend D.C.’s power to govern itself.
For a Black trans woman fighting eviction, safety starts with a lease she can keep. For a family with two dads choosing between medicine and a utility bill, freedom starts with a city willing to lower costs and stand up to greedy utility companies like Pepco and Washington Gas. For residents bounced between agencies, dignity starts with a government that can get help to people before crisis deepens.
Janeese’s campaign speaks to those conditions. She is running on tenant protections, affordable homes, lower utility costs, and a public safety plan that recognizes a problem residents already understand: D.C. has resources, yet too many people still get passed from agency to agency while their situation gets worse. She has also committed to rescinding the MPD order allowing local police to work with ICE.
The above-mentioned Blade column spends little time on those stakes. Its energy goes toward attacking Janeese’s endorsers and casting suspicion on her people-first politics. The writer has previously said he becomes wary when the Working Families Party endorses a candidate because he sees the party as anti-business. That critique reveals anxiety about a candidate challenging the corporation-friendly consensus that has made D.C. harder for working people to survive in. Yet it doesn’t speak to the many workers of those businesses who support a mayoral candidate like Janeese.
This election is also about how D.C. responds to Trump and federal overreach. Trump is not our mayor. The people of Washington, D.C. are. The argument that D.C. needs someone who can comfortably work with Trump sounds like preemptive surrender. There is little evidence that electing a more cautious Democrat would produce a respectful relationship with a president who has repeatedly treated D.C. residents as politically expendable.
D.C. needs a mayor willing to advocate for residents, defend the city’s interests, and resist attempts to bully or diminish the people who live here. Effective leadership requires negotiation. Negotiation from fear gives away power before the fight begins. Compliance is not a strategy for defending D.C.
Further, an ethics complaint against Janeese came with its own political baggage. City Paper reported that the nonprofit behind the complaint and investigation has a board member connected to a research firm her opponent’s campaign paid $20,000. Voters should weigh that connection against Janeese’s record and the LGBTQ organizations that have already vetted her.
This election will decide which communities are prioritized in D.C.’s future: working-class residents trying to stay in the city, or out-of-state elites treating D.C. like an investment portfolio. Black LGBTQ leadership carries responsibility here. Our communities know what it means to be praised in public and abandoned in budgets. We know the difference between symbolic allyship and policy that changes conditions.
I am ranking Janeese Lewis George #1 because, in this critical moment where inspiration is needed, Janeese is offering the kind of mayoral leadership D.C. needs. Black LGBTQ Washingtonians deserve a city we can afford, a government that works for people’s best interests, and leaders who will defend us.
Preston D. Mitchum is a D.C.-based policy consultant, attorney-activist, and television personality whose work focuses on the intersections of racial justice, democracy reform, health and gender equity, and LGBTQ+ rights.
Cuba
When impunity meets history
Raúl Castro indicted for alleged role in shooting down Brothers to the Rescue aircraft
The scene would have seemed impossible only a few years ago.
The name of Raúl Castro Ruz appearing formally inside a United States federal criminal indictment. Cuba’s former general of the Army, for decades one of the most powerful figures inside the Havana regime, accused in connection with the shootdown of the Brothers to the Rescue aircraft and the deaths of American citizens in 1996. And all of it unfolding in Miami, inside the Freedom Tower, on May 20.
That detail matters.
Because this indictment arrives at one of the most fragile and politically tense moments in recent relations between Washington and Havana. It comes as Cuba faces deep economic collapse, growing political exhaustion, mass migration, blackouts, and increasing public frustration both inside and outside the island. It also arrives on a date carrying enormous symbolic weight for Cuban exiles — the anniversary of the founding of the Cuban Republic in 1902.
But the true significance of this moment goes far beyond symbolism.
What happened in Miami represents something much larger: the collapse of the idea that certain men would never face accountability.
For decades, Raúl Castro embodied the permanence of revolutionary power in Cuba. Defense minister. Military strategist. The man who oversaw the armed forces for generations. One of the central architects of the Cuban political and security apparatus built alongside Fidel Castro. A figure many believed would leave this world untouched by any court, shielded forever by power, time, and history itself.
Today the image is very different.
Today his name appears inside the language of American criminal prosecution.
And that changes the historical dimension of this case completely.
Because this is no longer simply a political accusation voiced by the Cuban exile community. It is now a formal federal criminal indictment publicly announced by the United States government against one of the highest-ranking figures in the history of the Cuban regime.
The setting itself carried enormous meaning.
The Freedom Tower is not just another building in Miami. For generations of Cuban exiles it represents memory, displacement, survival, and the beginning of a new life after fleeing Cuba. Thousands of Cubans passed through those doors after escaping the revolution. Families arrived carrying fear, uncertainty, grief, and hope all at once. Announcing these charges from that location transformed the moment into something far deeper than a legal proceeding.
And the people witnessing it were not only members of the exile community.
Among those present were relatives of the young men killed nearly 30 years ago. Families who spent decades waiting to hear words they feared might never come. Families who carried the weight of loss while believing the men responsible would never be formally accused by any court.
That emotional weight still surrounds this case.
On Feb. 24, 1996, two civilian aircraft operated by Brothers to the Rescue were shot down over the Florida Straits by Cuban military jets. Armando Alejandre Jr., Carlos Costa, Mario de la Peña, and Pablo Morales were killed. The flights were connected to humanitarian rescue efforts searching for Cubans attempting to flee the island during the migration crisis of the 1990s.
Those aircraft were not military bombers.
They were not attacking Cuba.
They were civilian planes associated with rescue operations involving Cubans risking their lives at sea.
That reality has always shaped how this tragedy lives inside the memory of the Cuban exile community.
For many, this was never viewed simply as a geopolitical conflict between hostile governments. It was seen as the use of military force against civilians connected to humanitarian missions during one of the darkest chapters in modern Cuban migration history.
But for many Cubans, the indictment reaches far beyond the Brothers to the Rescue case itself.
It touches decades of unresolved pain tied to one of the central figures behind Cuba’s military and political system.
It reaches mothers who buried sons lost in compulsory military service or in distant wars they never chose to fight. Families who spent years believing promises that were never fulfilled. Political prisoners who disappeared into silence. Relatives who watched loved ones die trying to flee the island.
And for many LGBTQ Cubans, the moment carries another layer of historical weight.
Long before official campaigns promoting tolerance and inclusion emerged from within the Cuban government, there were years of persecution, fear, forced silence, and humiliation carried out under the revolutionary system itself.
The UMAP labor camps remain one of the deepest scars in modern Cuban history. Gay men, pastors, religious believers, artists, and others considered incompatible with the revolutionary ideal were sent away under the language of “re-education” and forced labor.
In recent decades, public gestures toward LGBTQ inclusion promoted by figures close to the Cuban leadership attempted to project an image of progress and openness to the international community. But for many survivors, and for many Cuban LGBTQ people, those gestures never erased the trauma or the historical responsibility tied to the same structures of power that once persecuted them.
For many, acknowledgment without accountability still feels painfully incomplete.
That is why this indictment resonates so deeply today.
Because it arrives while Cuba once again faces profound national crisis. The island is losing entire generations through migration. Public frustration continues to grow. Economic collapse shapes daily life. And the revolutionary narrative that once projected permanence and control appears increasingly eroded by reality itself.
Against that backdrop, the image emerging from Miami becomes even more striking.
A man once viewed as untouchable by history now formally accused by the United States government and legally transformed into a fugitive wanted by American justice.
History moves slowly until suddenly it does not.
And for many Cubans, both on the island and throughout the diaspora, what happened today inside the Freedom Tower felt like witnessing something they once believed they would never live long enough to see.
As a Cuban, as an immigrant, and as someone who has lived close to that pain, one thought keeps returning tonight:
Justice takes time.
But when it finally arrives, it arrives with history behind it.
David Trone’s commercials keep telling us what he has done for women. But apparently, he doesn’t trust them to fight for themselves, or he wouldn’t keep spending countless millions to defeat them.
Trone is trying to buy back his seat in Congress, this time running in a primary in Maryland’s 6th District against incumbent Democrat April McClain Delaney. Once again, Maryland voters should say a loud NO to David Trone. He is doing this after spending nearly $60 million trying to buy a United States Senate seat, which he thankfully lost to Angela Alsobrooks, now one of only two Black women in the United States Senate. Clearly, that was a blow to his ego, and now he is trying again to defeat another very competent woman. He has already spent close to $7 million on commercials attacking Delaney, telling us how much money he has spent on what he calls ‘good deeds.’ Delaney is accurately calling him out for working with Florida Gov. Ron DeSantis, and donating through his business, nearly $800,000 to Republicans, including MAGA ones. When he was buying his first seat in Congress, the Washington Post reported, “Wine retailer David Trone… has contributed more than $150,000 to Republicans in states across the country since 2000, according to a nonpartisan site that tracks money in politics. Most went to candidates and officeholders in states where he sought legislation or regulatory changes favorable to his company, Total Wine & More. Among the Republicans who received funds were Gov. Greg Abbott and Lt. Gov. Dan Patrick of Texas and North Carolina Gov. Pat McCrory.” The same Pat McCrory who signed anti-LGBTQ legislation and Abbott who wants to close all Planned Parenthood sites in Texas.
I urge voters in Maryland’s 6th, to speak out for, and vote for, April McClain Delaney. Join with me, and a host of others, who have endorsed her as of March 31. They include Sen. Angela Alsobrooks (D-Md.), Sen. Chris Van Hollen (D-Md.), Maryland Gov. Wes Moore (D), Rep. Nancy Pelosi (D-Calif.), Rep. Sarah McBride (D-Del.), and every Democrat in the Maryland U.S. House delegation.
McClain Delaney says, “Now, David Trone says I should step aside, so he can have his old office back after he ran for the Senate, lost, and has been sitting on the sidelines. He’s a distraction. This race isn’t about one man’s ego. … And as a member of team Maryland, I forged strong relationships with Governor Moore and the entire federal delegation, as well as with local leaders across the district.” She adds, “On behalf of my district, I stand up to bullies. That’s why I’ll continue to take on Trump’s assault on our government workers, defend our diverse community, protect choice and women’s reproductive rights, and work against inflation-creating tariffs.”
Again, this isn’t the first time Trone spent a fortune trying to get into Congress. It cost him about $25 million, and two tries, to win the first time. Then his ego had him give up the seat he bought to run for the U.S. Senate. Apparently he has unlimited amounts of money to spend and at nearly 72 thinks he needs to get back in by defeating a strong woman nearly 10 years younger, who is doing a great job. He is clearly not needed in Congress.
Trone always made the basis of his campaigns not taking any money from PACs, lobbyists, and big donors. Seems hypocritical considering he thought it was OK to influence others to build his own business. To give Trone credit he always runs on a very liberal platform, which is pro-LGBTQ, pro-women, and pro-equal and human rights for all. But then Democrats like April McClain Delaney, who he is now running against, has the same platform, and is doing a good job for her constituents.
Trone’s commercials are mostly about what he has done for women. But again, he clearly doesn’t trust women to do for themselves. He spent $60 million running against a great woman for U.S. Senate, and now is spending more millions running against another strong woman, trying to reclaim a House seat he gave up. Marylanders, make sure he loses again, by voting for April McClain Delaney for Congress.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
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